Criminal Law: Substance and Procedure Chapter 3 Rule of Law

 Substantive  Crimes and their punishments  Elements of a crime  Criminal defenses

 Procedural  How law is practiced  Laws of arrest, search and seizure  Rules of evidence  Trial procedures – jury selection, counsel and appeals Rule of Law

 Civil Law  Issues between private parties or organizations  Wills, trusts and estates  Property ownership  Commerce  Torts – injury law

 Public/ Administrative Law  Government relations with individuals or other government agencies Goals of Substantive Criminal Law  Enforce Social Control  Voluntary compliance is the ultimate goal

 Distribute Retribution  State not the individual is responsible for revenge

 Express public opinion or morality  Laws reflect what society wants them to reflect  Tina’s Law – OAS  http://www.wmtw.com/politics/debate-continues-on-maines-drunken-driving- laws-after-biddeford-crash/21437620

 Stand your ground laws  https://www.youtube.com/watch?v=Q7p9RGE_c4Q

 Deter criminal behavior  Prevent behavior before it occurs  Swift punishment is essential to this Goals of Substantive Criminal Law  Stand your ground laws  https://www.youtube.com/watch?v=Q7p9RGE_c4Q

 Deter criminal behavior  Prevent behavior before it occurs  Swift punishment is essential to this Goals of Substantive Criminal Law

 Punish wrongdoing  Sanctions or punishment  Maintain social order  Operate within accepted social boundaries  Restoration  Victim is provided restitution in the form of justice or compensation  Civil compensation is different History

 Code of Hammurabi  Concept of proportionality which prevails today  More serious crime = more serious punishment  Lex talionis - an eye for an eye

Common Law  Concept of stare decisis – to stand by decided cases  Today this is known as case law – judges rule on current issues using previously decided cases  Mala in se crimes – most serious and all agreed the behavior should be illegal  Mala prohibitum – less serious but still required sanctions  Common law versions of felonies & misdemeanors

Constitutionality  All criminal laws must conform to the limits of the Constitution  EX. Stolen valor law of 2006 declared unconstitutional in 2012 – 1st amendment violation  Criminal law is constantly changing  Ex post facto  The law in place at the time of the offense applies  This applies to punishment as well

Crime classifications  Felony  More serious offense  More than one year in prison possible  Misdemeanor  Less serious offense  In-presence requirement  Less than one year in jail  Violations/ Infractions  Some traffic violations  Civil offenses – possession of marijuana Crime defined

 Guilt requires an action and a state of mind  Actus reus – guilty act  Mens rea – guilty mind  Both are required for a conviction Actus Reus

 Act must be voluntary and deliberate  Car accident #1  Passenger killed in crash  Driver with BAC of .12  Speed calculation of 30mph over limit  Car accident #2  Passenger killed in crash  No drugs or alcohol in driver’s system  Speed calculation is at speed limit

Actus Reus

 Failure to perform legally required duty  Parent finds child unresponsive and waits three hours to call an ambulance  Statutory requirement  Can be negligent if you do not call for help  Good Samaritan laws – voluntary action  Contractual relationship  Doctor/ patient  Lifeguard/swimmer Mens Rea

 Act is done with criminal intent or deliberately  State of mind must be proven by prosecution  State of Maine  Intentionally  Knowingly  Recklessly  Negligently Culpable State of Mind (Maine)

 Intentionally  A person acts intentionally with respect to a result of the person’s conduct when it is the person’s conscious object to cause such a result  A person acts intentionally with respect to attendant circumstances when the person is aware of the existence of such circumstances or believes that they exist

Culpable State of Mind (Maine)

 Knowingly  A person acts knowingly with respect to a result of the person’s conduct when the person is aware that it is practically certain that the person’s conduct will cause such a result  A person acts knowingly with respect to attendant circumstances when the person is aware that such circumstances exist

 Recklessly  A. A person acts recklessly with respect to a result of the person's conduct when the person consciously disregards a risk that the person's conduct will cause such a result  B. A person acts recklessly with respect to attendant circumstances when the person consciously disregards a risk that such circumstances exist  C. For purposes of this subsection, the disregard of the risk, when viewed in light of the nature and purpose of the person's conduct and the circumstances known to the person, must involve a gross deviation from the standard of conduct that a reasonable and prudent person would observe in the same situation.  . Criminal negligence  A. A person acts with criminal negligence with respect to a result of the person's conduct when the person fails to be aware of a risk that the person's conduct will cause such a result  B. A person acts with criminal negligence with respect to attendant circumstances when the person fails to be aware of a risk that such circumstances exist  C. For purposes of this subsection, the failure to be aware of the risk, when viewed in light of the nature and purpose of the person's conduct and the circumstances known to the person, must involve a gross deviation from the standard of conduct that a reasonable and prudent person would observe in the same situation Mens Rea & Actus Reus

 Connection between act and state of mind  Specific circumstances will define what crime can be charged  Shoplifting – Robbery  Burglary – Theft Strict Liability

 Do not require a state of mind to be proven  Overriding public safety concern makes the action illegal  Dumping of toxic waste  Speeding  Health and welfare regulations  Statutory rape

Criminal Defenses

 Ignorance or Mistake

 Generally not a viable defense  You are responsible for knowing the law  New laws are published and many involve a public education campaign Criminal Defenses  Excuse defenses  Insanity  M’Naghten rule – right from wrong  Irresisitable impulse – couldn’t control their behavior  Substantial capacity test – to control one’s behavior – combines both of above  Virginia Green case/  Derek Soucey case- http://bangordailynews.com/2009/01/07/news/judge-oks- more-freedom-for-mentally-ill-killer/

 Intoxication (except involuntary)  Ignorance  Age – Common Law  Under 7 – cannot form intent  7-14 – reliable presumption of being able to form intent – case facts important  Over 14 – can form intent & be responsible  State statutes generally set at 18 Justification defenses

 Necessity  Circumstances do not allow any other behavior  Duress  Forced to commit crime to prevent death or harm to self or others  Self-defense  Reasonable belief of imminent danger & no possibility of escape  Stand your ground laws – 23 states  Entrapment  Engage in behavior they would not have otherwise  Different from using decoys or stings  Consent

Recent Changes

 Stalking laws  Legalization of marijuana  Assisted suicide  Piracy of digital files  Terrorism  Stand your ground  Cell phone info Amendments

 4th amendment  Search and seizure  Warrantless searches  Exclusionary rule – illegally seized evidence not admissible  5th amendment  Due process  Right against self incrimination  Admissibility of confessions (Miranda)

Amendments

 6th amendment  Speedy trial and impartial jury  Nature of charges against  Confrontation clause  Represented by an attorney  8th amendment  Excessive bail prohibited – but no right to bail  Cruel and unusual punishment  14th amendment  Bill of Rights applies to states Herring v. United States

 Herring stopped by police  Police informed of outstanding warrant from another jurisdiction  Search finds drugs and firearm – he is arrested  Oops... warrant had been recalled but left in computer by mistake  What should happen here?

 http://www.supremecourt.gov/opinions/08pdf/07- 513.pdf

Constitutional Interpretation

 Will depend upon the make up of the Supreme Court  Liberal v. Conservative  Can and will change over time and with Supreme Court appointments  The law is catching up with technology  Warrant for GPS tracking  DNA taken at arrest